Reboots and the Right of Publicity

One issue that arises periodically in intellectual property is the intersection of copyright and the right of publicity. Suppose I come up with a character or write all of the character’s dialogue. I own the copyright to that. An actor, though, becomes closely identified with the role and has a right of publicity to the use of his likeness. (Say, Daniel Radcliffe and Harry Potter.) If goods are sold bearing that actor’s image as the character, who gets the money? Most of the time a contract will answer this question, but sometimes that is not true. In that case, you can find some authority supporting the actor (the Bela Lugosi case in California, for instance), but not enough to answer the question clearly.

It strikes me that the rebooting of old TV shows or movies with younger actors should play an important role in that analysis. Ten years ago, I would have said that Leonard Nimoy was Spock. How could anyone else play that part? Well, now somebody else does, and people are OK with that. The same is true for other signature roles. Maybe that means that we really are thinking about William Shatner when we see “classic Kirk.” If, on the other hand, only one person has played a role in a high-profile way, it is harder to make that separability argument in favor of publicity rights.

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Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.